Citation Nr: 21000858 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-53 311 DATE: January 6, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to October 17, 2019 for lumbar spine degenerative disc disease with intervertebral disc syndrome is denied. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease with intervertebral disc syndrome from October 17, 2019 is denied. REMANDED Entitlement to service connection for left hip osteoarthritis with trochanteric bursitis is remanded. FINDINGS OF FACT 1. Prior to October 17, 2019, the lumbar spine disability manifested in forward flexion of 80 degrees, combined range of motion over 120 degrees, no ankylosis and no bedrest prescribed by a physician. 2. Since October 17, 2019, the lumbar spine disability manifested in forward flexion of 70 degrees with some functional loss, a combine range of motion of over 120 degrees, no ankylosis and no bedrest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to October 17, 2019 for lumbar spine degenerative disc disease with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. 2. The criteria for a rating in excess of 20 percent from October 17, 2019 for lumbar spine degenerative disc disease with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA). Increased Rating The Veteran contends that his disability warrants an increased rating throughout the course of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent prior to October 17, 2019. The Board notes that VA received the Veteran’s claim for an increased rating in March 2018. During this period of the appeal, the Veteran’s disability was awarded a 10 percent rating according to Diagnostic Code 5243. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height, a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) of the General Rating Formula provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243. Note (5) to the General Rating Formula for Diseases and Injuries of the Spine provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on incapacitating episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS based on incapacitating episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as degenerative arthritis of the spine and IVDS. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in May 2018. The Veteran reported constant dull pain that becomes sharp. The Veteran reported a burning like sensation to left lower back that occasionally radiates down left leg to top of foot that occurs about two to three time per year lasting up to 2 months. The Veteran reported experiencing flareups two to three time per year. The Veteran stated that these flareups result in back pain with pain radiating down left leg that last about 2 months. The Veteran reported increased lower back pain with prolonged sitting, standing, driving over two hours and with increased physical activities. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 80 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 15 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 30 degrees, left lateral rotation 0 to 30 degrees. The examiner indicated that pain was noted on exam, but it does not result in or cause functional loss. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner indicated that the Veteran was not prescribed bed rest by a physician in the past 12 months. The examiner indicated that the Veteran did not exhibit guarding or muscle spasm of the thoracolumbar spine. Lastly, the examiner indicated that the Veteran did not exhibit ankylosis. The Board acknowledges that the Veteran stated that he experienced flareups. The Veteran did not identify any additional lost range of motion during a flareup and described pain radiating down his left leg. In turn, the VA examiner determined that the Veteran described symptoms of left lower extremity radiculopathy and he was awarded a separate compensable rating effective from March 2018. The Board finds that the Veteran’s report of a flareup was adequately addressed by the examiner and an additional VA examination to address this report is unnecessary. The examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations during flares. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Board has also reviewed the Veteran’s medical treatment records for this period of the appeal. The Veteran’s records do not show lost range of motion greater than what was reported at his VA examination. The Veteran’s records also do not show evidence of bed rest prescribed by a physician. In sum, the Board finds that the Veteran’s disability during this period of the appeal has remained consistent and an increased rating is not warranted. After a review of the record, the Board finds that the most probative evidence of record is the results of the Veteran’s May 2018 VA examination. This examination demonstrated that the Veteran did not have lost range of motion which met the criteria for a rating in excess of 10 percent. In addition, the record during this period of the appeal does not reflect that the Veteran had signs or symptoms of ankylosis. Moreover, the Board further notes that the VA examiner indicated that the Veteran did not exhibit muscle spasm or guarding that resulted in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Furthermore, the Board notes that at no point during this period of the appeal has the evidence demonstrated that he had incapacitating episodes requiring physician prescribed bedrest. Lastly, the Board has considered the Veteran’s report of pain on motion; however, the VA examiner indicated that the Veteran did not have additional limitation of motion after repeated repetitions of motion. Accordingly, the Board does not find that the Veteran’s symptomatology, even when considering pain on motion demonstrates that his condition warrants an increased rating. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for a lumbar spine disability, must be denied. 2. Entitlement to a rating in excess of 20 percent from October 17, 2019. As to a current diagnosis, the Board notes that the Veteran’s disability was diagnosed as degenerative arthritis of the spine. In October 2019, the Veteran attended an additional VA examination. At the examination, the Veteran reported pain, stiffness, and decreased range of motion in the lumbar spine with radiculopathy in the left lower leg. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 70 degrees, extension 0 to 15 degrees, right lateral flexion 0 to 15 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 20 degrees, and left lateral rotation 0 to 20 degrees. The examiner indicated that pain was noted on examination and causes functional loss. The examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner indicated that the Veteran was not prescribed bed rest by a physician in the past 12 months. The examiner indicated that the Veteran had guarding and muscle spasms that resulted in an abnormal gait or spinal contour. The examiner indicated that the Veteran did not report any flareups. Lastly, the examiner indicated that the Veteran was not prescribed bed rest by a physician in the past 12 months. The Board has also reviewed the Veteran’s medical treatment records for this period of the appeal. The Veteran’s records do not show lost range of motion greater than what was reported at his VA examination. The Veteran’s records also do not show evidence of bed rest prescribed by a physician. In sum, the Board finds that the Veteran’s disability has remained consistent during this period of the appeal and that an increased rating is not warranted. After a review of the record, the Board finds that the most probative evidence of record is the results of the Veteran’s October 2019 VA examination. The examination did not show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less nor did this examination show that the Veteran’s spine exhibited any signs of ankylosis. Moreover, the record did not reflect that the Veteran had incapacitating episodes that required physician prescribed bedrest. Lastly, the Board has considered the Veteran’s report of pain on motion; however, the VA examiner indicated that the Veteran did not have additional limitation of motion after repeated repetitions of motion. Accordingly, the Board does not find that the Veteran’s symptomatology, even when considering pain on motion demonstrates that his condition warrants an increased rating. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 20 percent for a lumbar spine disability, must be denied. Other Considerations For both time periods on appeal, the Board has considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show, that his disabilities prevent the Veteran from securing or following a substantially gainful occupation at this time. REASONS FOR REMAND 1. Entitlement to service connection for left hip osteoarthritis with trochanteric bursitis is remanded. The Board notes that the Veteran attended a VA examination for this issue in July 2018. Following the examination, the examiner found that the Veteran’s disability was less likely as not due to his military service. The examiner stated that the Veteran’s records during service are inconsistent with these diagnosed conditions being present or being related to service. The examiner also stated that the Veteran’s service treatment records showed that the Veteran reported radiating pain to the left lower limb consistent with a back condition for which he is service connected. The Board finds this opinion is inadequate to decide this case because it is not a thorough and well-reasoned analysis of the Veteran’s disability that is based on an accurate set of facts. Specifically, the Board notes that the examiner addressed the Veteran’s reports of pain radiating into his left leg; however, the examiner did not address the Veteran’s April 2007 in-service report of hip pain. Additionally, the examiner should address the medical treatise evidence submitted by the Veteran’s representative in May 2020 (Titled: Hip-spine syndrome: A cadaveric analysis between osteoarthritis of the lumbar spine and hip joints). For the above stated reasons, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s left hip disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s left hip disability. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: Please state the diagnoses for all of the Veteran’s left hip disorders. (A). Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left hip disorder had its onset in service or is caused by or related at least in part to his active service? (B). Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left hip disorder was caused or aggravated by his service-connected disabilities? In providing the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced and address the article submitted in May 2020. (Continued on the next page)   If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.